Monroe v. Franklin Flags Amusement Park NCBE DRAFTERS POINT SHEET

Transcription

1 Monroe v. Franklin Flags Amusement Park NCBE DRAFTERS POINT SHEET In this performance test, examinees work for a law firm representing Franklin Flags Amusement Park. Franklin Flags is being sued in negligence by Vera Monroe, a patron who was injured at the Park last Halloween. She claims three acts of negligence on the part of the Park: First, Ms. Monroe was injured when, frightened by a staff member playing the role of a zombie in the Park s Haunted House attraction, she ran into a wall, breaking her nose. Second, Ms. Monroe was further injured when, after exiting the Haunted House, she slipped on a muddy path in a mock graveyard that was part of the Haunted House attraction, and sprained her ankle. Third, Ms. Monroe was again injured when, after leaving the mock graveyard, she was confronted by a costumed staff member wielding a fake chain saw, fell again, and broke her wrist. The task from the supervising partner is to draft the argument section of a persuasive brief in support of a motion for summary judgment; the brief must deal with each of the three injuries claimed by Ms. Monroe to have been caused by the Park s negligence. The legal analysis of each of these issues involves application of the facts, as determined in discovery, to the law as set forth in prior Franklin cases. Examinees are instructed not to address issues of comparative negligence or damages. The File contains 1) the instructional memorandum; 2) the law firm s Guidelines for Persuasive Briefs in Trial Courts; 3) excerpts from the deposition transcript of Vera Monroe, the plaintiff; 4) excerpts from the deposition transcript of Mike Matson, the General Manager of the Park; and 5) excerpts from the deposition transcript of Camille Brewster, the staff member who played the zombie in the room of the Haunted House where the plaintiff was first injured. The Library contains two Franklin Supreme Court cases with embedded cases. The following discussion covers all the points the drafters intended to raise in the problem. Examinees need not cover them all to receive good grades. I. FORMAT AND OVERVIEW Examinees must, first, master the facts as revealed by the three deposition transcripts; second, master the law of negligence as set forth by the cases; and third, persuasively apply that

2 law to the facts so as to convince the court that summary judgment should be granted in favor of the Park. Examinees should address each of the three claims, arguing that in each instance, the Park s acts were not negligent and therefore the Park has no liability for Ms. Monroe s injuries: 1) Ms. Monroe s Injury in the Haunted House: The question is whether the Park s acts (by its staff member, in its instructions to her, and in its supervision of her) in deliberately frightening Ms. Monroe such that she ran into a wall and broke her nose constituted negligence. 2) Ms. Monroe s Injury in the Mock Graveyard: The question is whether the Park s acts (in its maintenance of the grounds and lack of supervisory personnel) in requiring patrons to exit the Haunted House attraction through a muddy path, such that Ms. Monroe fell and injured her ankle, constituted negligence. 3) Ms. Monroe s Injury After Leaving the Haunted House Attraction: Here, the question is whether the Park s acts (by its staff member, in its instructions to him, in its supervision of him, and in arranging the activity outside of the attraction itself) in again deliberately frightening Ms. Monroe such that she fell and broke her wrist constituted negligence. II. DISCUSSION A. Facts Although examinees are instructed not to restate the facts, they must be mastered properly and incorporated into the legal argument. Vera Monroe s deposition establishes the following facts: She and her husband went to the Franklin Flags Amusement Park on the previous Halloween. They entered the Haunted House attraction, which had opened for the first time on that day (stipulated by the Park). They went through the rooms of the house; in each, when presented with a scary tableau, Ms. Monroe let out a little scream, which amused her husband. When they entered the last room, which was dimly lit, a staff member costumed as a zombie jumped out of a hiding place, yelling. At that point, Ms. Monroe lost it and ran into a wall, breaking her nose. The staff member approached Ms. Monroe, saying something Ms. Monroe did not hear because she was crying and screaming. She told her husband to get her out of the house, which he did immediately. Ms. Monroe and her husband then went through the mock graveyard, which had a muddy path. The graveyard was illuminated by little lights on the pathway. Ms. Monroe knew that it had

3 rained without letup for the three days preceding Halloween. She slipped on the path and sprained her ankle. There was no staff member present. After exiting the mock graveyard and the attraction through a gate, Ms. Monroe and her husband headed to the parking lot. This area was lit by lampposts, and Ms. Monroe could see okay. A costumed staff member brandishing a fake chain saw accosted them. They were startled, and Ms. Monroe fell and broke her wrist. It being Halloween, Ms. Monroe expected to be scared that being the fun of the holiday but not unduly frightened or terrified. Neither she nor her husband inquired as to why the staff member dressed as a zombie kept coming toward them after Ms. Monroe had broken her nose. Nor did they ask either of the two staff members they encountered for help. Mike Matson s deposition establishes the following facts: He is the Park s General Manager. The Haunted House attraction was opened on Halloween. Staff members were in the house to play appropriate roles and frighten people in the spirit of Halloween. After patrons exited the house and mock graveyard, a staff member appropriately costumed was to play a final scary prank on patrons. No staff members other than those in the Haunted House attraction and the employee wielding the mock chain saw were in costume or instructed to frighten patrons. All staff members, including those playing the parts in the last room of the house and outside the graveyard (but not in the graveyard itself), were instructed to help patrons who might get into trouble. A doctor was on duty in case medical attention should be necessary. As a general matter, the pathways of the amusement park where patrons walk are paved. No paved path was included in the mock graveyard; it was left as a dirt path for verisimilitude. Camille Brewster s deposition establishes the following facts: She played the part of the zombie in the last room. She was instructed to scare patrons in the spirit of Halloween. She also was instructed to help any patrons in distress and notify the doctor if medical attention was necessary. When Ms. Monroe was injured in the last room of the house, Ms. Brewster approached to help her and said, Are you okay?, but Ms. Monroe and her husband fled before Ms. Brewster could do anything. Ms. Brewster is just 17 years old and has had minimal first aid training. B. Analysis As the brief is in support of a motion for summary judgment, examinees should note that, as set forth in Larson v. Franklin High Boosters Club, Inc., summary judgment will be granted

4 when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Additionally, as set forth in the firm s guidelines for persuasive briefs, the brief should include properly crafted headings for each argument. That is, the headings should be a specific application of a rule of law to the facts and not a bare legal or factual conclusion or statement of abstract principle. The headings below are examples meeting the firm s criteria. 1. The Park Is Not Liable in Negligence for Ms. Monroe s Broken Nose, Because Liability for Negligence Depends on the Circumstances, and Deliberate Frightening of People, Which at Other Times Might Be a Negligent Breach of the Defendant s Duty, Is Not So Within a Haunted House Attraction or on Halloween. Examinees should set forth the general rule: Whether the Park is liable in negligence depends on whether it had a duty to avoid risk in the circumstances presented, whether it breached that duty resulting in damage, and whether the risk which resulted in the damage fell within the scope of that duty; in other words, whether the Park acted unreasonably in the circumstances. Larson. Thus, while in general it is unreasonable to deliberately scare people, as exemplified by Dozer v. Swift (defendant liable for injuries caused when he deliberately scared a coworker who suffered from arachnophobia), there are particular circumstances in which similar conduct by a defendant does not result in liability, specifically on Halloween. See Larson. Examinees would next be expected to set out the rule as it is applied on Halloween and at haunted house attractions: Patrons at an event on Halloween which is designed to be frightening expect to be surprised, startled, and scared. The event operator thus has no duty to protect them from reacting in bizarre, frightened, or unpredictable ways. Patrons know that they can anticipate being frightened, and hence the general duty not to scare others, see Dozer, does not apply. Examinees should then apply the rules to the facts here: Ms. Monroe knew that it was Halloween, and that the very point of the attraction and the goal of Park employees were to scare her. Indeed, until the final room, she and her husband were more amused than truly frightened by the presentations in the attraction. Her reaction being very frightened when accosted by the staff member playing the role of a zombie, was not outside the range of reactions to be expected in such a situation, even if running into a wall was. The fact that this was the only room in the Haunted House in which, in Ms. Monroe s words, a scary character had come right up to [them] like that, does not change the analysis; Ms. Monroe entered the Haunted House with the expectation of being frightened.

5 Because it is a business establishment and Ms. Monroe was an invitee, the Park had an additional duty of using reasonable care in inspecting and maintaining the premises so that they were reasonably safe for their intended purpose. The Park s duty to its patrons also included having adequate personnel and supervision such that, should a patron be injured, appropriate aid could be delivered. Here, Ms. Brewster, the zombie staff member, who had minimal first aid training and was just 17 years old, nevertheless was so instructed. Indeed, Ms. Brewster attempted to aid Ms. Monroe after she was injured but was prevented from doing so by the hasty departure of Ms. Monroe and her husband. And, as was mentioned in Mike Matson s deposition, the Park keeps a physician on duty at all times in case of emergencies. And unlike the situation in Costello v. Shadowland Amusements, Inc., in which a bench left in the middle of a dimly lit room was an obviously defective condition of which patrons were unaware (and would not expect on any day of the year, even Halloween), there was no impediment or hazard to movement in the last room of the house. The wall that Ms. Monroe ran into was not a defective condition every room has walls. In sum, examinees should argue that, as to Ms. Monroe s first injury, the Park acted reasonably under the circumstances and did not breach any duty imposed upon it to prevent undue risk to Ms. Monroe. It is not liable in negligence for Ms. Monroe s broken nose. 2. The Park Is Not Liable in Negligence for Ms. Monroe s Sprained Ankle in the Mock Graveyard, Because She Was Aware of the Muddy Ground and No Reasonably Prudent Person Would Incur Injury in Such Circumstances. Examinees should next argue that the Park is not liable for the sprained ankle incurred when Ms. Monroe slipped on the muddy path in the mock graveyard. They should analyze this claim using the framework in Parker v. Muir, cited in Costello. A property owner is liable for damage caused by a dangerous condition, but only upon a showing 1) that the owner knew, or reasonably should have known, of the dangerous condition, 2) that the damage could have been prevented by the exercise of reasonable care, and 3) that the owner failed to exercise that care. Further, every dangerous condition is not unreasonably dangerous. Factors to take into account in making that determination include 1) the accident history of the condition, 2) the degree to which the danger may be observed by a potential victim, and 3) whether the condition is of such a nature

6 as to cause a danger which would reasonably be expected to cause injury to a prudent person using ordinary care. Examinees might first note that, although all the other paths where patrons walked in the Park were paved, the path in the mock graveyard was left unpaved, as paths may be in real graveyards. Hence, the Park did not act unreasonably in leaving the mock graveyard path unpaved. No reasonable person would think that a graveyard path would necessarily be paved, and a reasonable person would assume that a graveyard path might be unpaved. In addition, the path was illuminated by small lights, as Ms. Monroe conceded in her deposition. Thus, the condition of the path should have been readily apparent to a person exercising ordinary care. Further, examinees should note that Ms. Monroe knew that it had rained without letup for three days, and hence she knew, as any reasonably prudent person would know, that an unpaved path could well be muddy and slippery. Thus, the muddiness of the path did not constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Parker. Examinees should note that, as in Parker, the muddy path was not unreasonably dangerous. In Parker, the condition at issue (rocks in the path of a corn maze) was known to the plaintiff, was to be expected under the circumstances, and was shown by the otherwise unblemished safety record of the maze not to be dangerous. Similarly, here Ms. Monroe knew that the ground would be muddy (as shown by her deposition testimony about the rains over the three days before Halloween), and muddy ground is to be expected after a rainstorm. Moreover, the safety record of the attraction is shown by Ms. Brewster s deposition testimony that the only incident occurring on the date in question was Ms. Monroe s unfortunate accident. Examinees should distinguish Costello by noting that the dangerous condition in that case (placement of a bench in the middle of a dimly lit room) was caused by Shadowland s own action when it so placed the bench and that such a condition could not have been foreseen by patrons. Here, no one from the amusement park staff was in the graveyard to scare Monroe she fell because she slipped in muddy conditions. She could have slipped in mud anywhere. The Park did not create the dangerous condition, nor was the state of the ground (muddy and slippery) hidden from anyone walking on it. Thus, taking necessary precautions while walking in the mud seems to have been squarely within Monroe s control and responsibility.

7 3. The Park Is Not Liable in Negligence for Ms. Monroe s Broken Wrist, Even Though This Injury Occurred Outside the Haunted House Attraction, Because There Is a General Expectation of Being Accosted and Frightened by People Playing Roles on Halloween. The third claim of injury may be a more difficult claim to refute than the other two because the injury took place outside of the attraction. Examinees should address the fact that Ms. Monroe was frightened outside the Haunted House attraction, not in it or in the graveyard. It is less likely that a Haunted House patron like Monroe could have anticipated being frightened once she had left the Haunted House grounds. Her deposition testimony underscores this view of the attraction being behind her and thinking that she was safe. Examinees should argue that notwithstanding the fact that Monroe was injured outside of the attraction, she still was on park grounds and should have had the expectation of being subjected to Halloween-related activities. As the Larson court notes, Under other circumstances, presenting a frightening or threatening act might be a violation of a general duty not to scare others.... But... on Halloween, the circumstances are different. Examinees should use Ms. Monroe s own testimony to make the point that she was fully aware, and indeed expected, that, no matter the setting (attraction, graveyard, park grounds), others might very well attempt to frighten her on Halloween. She testified that she and her husband expected their trip to the Park to be great fun, it being Halloween and all. She testified that her enjoyment in being scared with respect to all but the last frightening apparition in the Haunted House was a source of amusement to her husband, implying that she found it amusing too; in effect, she was getting what she bargained for. Ms. Monroe testified that, on entering the Haunted House attraction, she expected to be frightened or scared, saying that s part of the fun on Halloween. That expectation should apply equally to events outside the attraction, while still on park grounds. Part of the fun is to be surprised. Monroe testified that she normally celebrates Halloween and has really enjoyed it you know, seeing people dressed up in costumes and having fun trick-or-treating and trying to scare people and stuff like that. Examinees will have to deal with the fact that, as Mr. Matson testified, no other staff members on the grounds outside the Haunted House attraction were in costume or instructed to frighten patrons. Examinees should note Ms. Monroe s expectation of being frightened on Halloween as a general matter, in that, as she testified, she expected to see people dressed up in costumes trying to scare people. Hence, seeing a costumed staff member acting in a frightening

8 manner could reasonably be expected even outside of the Haunted House, despite her deposition statement that that was not a reasonable expectation, that, having left the Haunted House attraction, she thought she was in an entirely different situation... [and] back to normal surroundings. In sum, examinees should conclude that the Park did not act negligently in arranging for the staff member with the fake chain saw to accost the Monroes, for, as Ms. Monroe herself testified, that s part of the fun on Halloween. And, in contrast to the situation in Dozer, the Park was unaware of any phobia or other condition or frailty on the part of Ms. Monroe. Whether the Park s action on any other day might have been negligent is irrelevant; on Halloween inside or outside the attraction it was not. C. Conclusion Examinees should persuasively argue that summary judgment should be granted and that the defendant should not be liable in negligence because 1) the circumstances of the plaintiff s injury in the Haunted House were not caused by a breach of the defendant s duty, given the nature of the attraction, the fact that it was Halloween, and the adequate maintenance of the attraction and supervision and instruction of its personnel; 2) the plaintiff was aware of the condition of the path in the mock graveyard, and no reasonably prudent person would have incurred injury in such circumstances; and 3) given the general expectation of being accosted by role-playing persons on Halloween, the defendant did not breach its duty to the plaintiff and so is not liable for her injury outside the Haunted House attraction. Copyright 2013 by the National Conference of Bar Examiners